Doctrinal Mutilation: The Board of Immigration Appeals' Flawed Analysis of the 'Continuing Persecution' Doctrine in Claims Based on Past Female Genital Mutilation
Georgetown Immigration Law Review, Vol. 23, p. 39, Fall 2008
19 Pages Posted: 14 Jan 2012 Last revised: 6 Apr 2012
Date Written: September 1, 2008
On September 22, 2008, United States Attorney General Michael B. Mukasey vacated and remanded a decision of the Board of Immigration Appeals (BIA) denying relief from removal to a Malian woman who had been subjected, in the past, to female genital mutilation. In a September 27, 2007 decision denying relief and an April 14, 2008 decision denying reconsideration, the BIA reasoned that because the genital mutilation had already occurred and would likely not be repeated, the applicant need not fear future persecution and therefore did not qualify for protection. The BIA decision immediately came under attack by members of Congress, advocacy organizations, academics, the media, and, most recently, the courts. On June 11, 2008, the Second Circuit Court of Appeals refused to adopt the decision in its circuit, reasoning that the BIA erred by failing to require the government to prove that women who had experienced genital mutilation in the past would not be subject to further mutilation or other forms of persecution in the future. Attorney General Mukasey subsequently vacated and remanded the decision on those same grounds.
In this article, I argue that there is another, independent reason why such women should qualify for relief, even assuming the government can show that they will not be subject to further mutilation or persecution in the future. I argue that, like forced sterilization, female genital mutilation is a form of continuing persecution, such that the government cannot rebut the presumption of well-founded fear of future persecution that arises once an applicant has shown past persecution.
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